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The pitfalls of enforcing copyright protection in the digital age

Amazon caused a stir when it unilaterally removed George Orwell’s classic novel 1984 from Kindle e-readers in 2009. Shutterstock

In mid-July 2009, in a twist of irony, online retailer Amazon unilaterally removed digital copies of George Orwell’s classic novel 1984 from a number of Kindle e-readers. Customers were outraged.

If it wasn’t for the fact that it really happened, it would surely be a fitting allegory for the pervasive influence of modern technology and how easily it allows for tampering in our lives.

This incident is a cautionary tale against the use of unfettered and, at times, unwarranted copyright protection. It is important in South Africa given the proposed amendments to the Copyright Act to, among other goals, beef up copyright protection in the digital age.

In principle it is justifiable to protect and grant a holder of copyright the exclusive right to profit from the fruit of their original labour. This is the basis of intellectual property rights.

But the drastic steps taken by Amazon against innocent purchasers of Orwell’s novel are likely not justifiable. The incident occurred because the company that added the digital copies of the book to the Kindle store did not have the rights to the book. So, to ensure that Amazon wasn’t a party to the infringement of the copyright to Orwell’s novel, the company stopped selling the e-book.

Amazon was able to accomplish this because it incorporated technology into its e-readers that allowed it to privately enforce its user agreements and the copyright licenses of others. This technology is commonly referred to as Digital Rights Management (DRM).

What is digital rights management?

The evolution of DRM technology has played a significant role in the enforcement of intellectual property rights in the digital age. It refers to a mixture of technical and legal protection measures. It is commonly applied to digital copyright, which is designed to control and regulate digital content.

Traditionally, DRM technology was simply used to regulate the use of content subject to intellectual property rights protection. The newer and more problematic forms now seek to control access to the content.

The proliferation of DRM technology is largely due to Article 11 of the WIPO Copyright Treaty. This provides for countries to develop protection for and remedies related to the circumvention of so-called technical protection measures used by rights-holders in connection to the exercise of their copyright. Among others, this forms the basis for the European Information Society Directive and the somewhat infamous Digital Millennium Copyright Act in the US.

South Africa has signed the copyright treaty but it has not yet been adopted into law. The draft Copyright Amendment Bill seeks to do so, although some of the proposed aspects are problematic.

The DRM is getting more complex and draconian, given the ease with which copyright may be infringed over the internet and the multiplier effect this may have with regard to a loss of royalties or other income. Some of its staunchest critics, such as the Electronic Frontier Foundation, point out that DRM technology exceeds the scope of mere intellectual property protection. They allege it crosses a line where it clashes with established principles in the field of intellectual property law.

Fair use and exceptions

From an intellectual property law point of view, DRM has been criticised as potentially undermining traditional exceptions with regard to intellectual property, such as the principle of fair use and the doctrine of first sale.

Fair use, which is not currently recognised in South Africa but which the draft Copyright Amendment Act seeks to introduce, aims to balance the rights of copyright holders vis-à-vis the rights of the legitimate users of such copyright. In terms of the Berne Convention, copyright is fairly used if:

  1. It is done for a specific, recognised purpose;

  2. It does not conflict with the copyright holder’s normal rights; and

  3. It does not unreasonably prejudice the legitimate interests of the copyright holder.

Digital rights management technology is good, but can also be abused. Shutterstock

By controlling access and restricting use, DRM potentially prevents this. It has already led to situations where certain legitimate users’ access rights have been rendered obsolete. The opinion is slowly changing on whether this is acceptable. The European Court of Justice recently ruled that a copyright holder of software cannot oppose the resale of “used” licences, even in the case where the software was downloaded from the internet.

From a competition law point of view, it has been shown that DRM technology can be misused to try and exclude competitors, enforce distribution agreements, and engage in price discrimination between different consumer and geographic markets. This is not only in relation to how retailers may deal with digital goods, but also to private consumers after the fact.

There have been cases where it was stated that in instances where technology is used to frustrate competition rather than protect intellectual property, this will not be allowed.

The challenge for South Africa

Currently the legal status of DRM in South Africa is unclear. Some have argued that protection for it is provided for through the cybercrime provisions of the Electronic Communications and Transactions Act, which attempts to overcome security measures protecting data illegal.

But the same provisions outlaws interference with data. Given the provisions of the Consumer Protection Act and that these agreements are rarely read by users who have no choice but to agree to them, the solution may not be so simple.

Most forms of DRM are lawful in South Africa. And the technology itself, while controversial, has a place in copyright enforcement.

But unfettered protection is not warranted, and the South African legislature should take care when implementing the proposed amendments.

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